JUDGMENT 1. The petitioner was charged on three counts. However, first one, if proved, is so serious that it would deserve not only capital punishment being dismissal from service but also a social stigma through out his life. The Authority dismissed him from service while he had three and half years service left to his credit. As on date, he is out of service and carrying social stigma which, unless removed by this Court, would be with him throughout his lifetime. 2. The petitioner was an Assistant Sub-Inspector posted at Hasnabad Police Station in 1997. While he was at Hasnabad, he was involved in a controversy. According to him, he got acquainted with one Anil Mondal and Golapi Mondal, pertaining to their domestic affairs. The people say that he had illicit relationship with Golapi. He was subsequently transferred to other Police Station, he however, continued to visit Hasnabad, as alleged by the Administration. On June 21, 1998 Santimoy, Officer-in-Charge, Hasnabad Police Station, received a verbal communication that the house of Jaladhar Houli, father of Golapi, was gheraoed and the villagers were about to assault Sachindra, who was found staying in the said house. Santimoy, along with Force, arrived at the place of occurrence. He rescued Sachindra and brought him to the Police Station. Santimoy in his report recorded that Sachindra was found in a locked-room with Golapi. Such statement, however, did not find corroboration from any other supportive evidence except the Police Personnel. Pertinent to note, neither the parents of Golapi nor any villager was examined at the enquiry. From the Case Diary and/or records produced before us by Mr. Majumdar, we find that a voluntary statement of the delinquent was recorded by Santimoy, wherefrom we find that the delinquent did not agree with the slur, which the villagers wanted to mess on him. As per his statement before the Police Station, recorded at 3-00 O’clock in the night, he went to the house of Jaladhar Houli. He stayed there. He also agreed that he used to go there frequently. Jaladhar’s daughter Golapi had some matrimonial problem with her husband Anil. Anil was next door neighbour of Jaladhar. The local villagers, however, believed that he had some illicit relationship with Golapi and out of surmise they surrounded the house and the incident happened. At 1-00 O’clock at night the police rescued Sachindra from the said house. Jaladhar’s daughter Golapi had some matrimonial problem with her husband Anil. Anil was next door neighbour of Jaladhar. The local villagers, however, believed that he had some illicit relationship with Golapi and out of surmise they surrounded the house and the incident happened. At 1-00 O’clock at night the police rescued Sachindra from the said house. He denied having any relationship with Golapi and admitted having acquainted with the family while he was posted at Hasnabad. He also promised not to visit the place any more. The Police procured this statement on the day of the incident when the delinquent was in the custody of the Police. Pertinent to note, even then the delinquent did not agree with the allegation that he had illicit relationship with Golapi. 3. From the records we find three letters of Anil having contradictory statements. On June 20, 1998, Anil made a complaint to the Officer-in-Charge, Hasnabad Police Station that Sachindra was unnecessarily involving himself in their family problem. He was visiting the family despite being warned. He established illicit relationship with Golapi. Such complaint was followed by the incident at night on the next day. From the records, it appear, that on October 20, 1998 the delinquent was furnished with charge sheet on the allegation that he had mis-conducted himself by establishing illicit relationship with Golapi, which would amount to moral turpitude. He also failed to attend duty on May 16, 1998 and abused the driver of a hired car in filthy language on the said date. It appears that second two charges were minor in nature. 4. We also find from the records that on September 19, 1998 Anil and Golapi filed another complaint wherein they alleged that Sachindra was innocent. He was victim of circumstance. The family had land dispute with the relations of Golapi, who joined hands with the relations of Anil. Pertinent to note, Golapi was the second wife of Anil. His sons through his first wife also joined hands with the other group and got political backing of a political party then ruling the State. Due to such land dispute the other group caused immense prejudice to Golapi and Anil. They also poisoned their poultry causing loss to the extent of Rs. 20,000/-. We find another complaint of Anil on June 29, 1998, supporting earlier complaint of June 20, 1998, accusing Sachindra maintaining illicit relationship with Golapi. Due to such land dispute the other group caused immense prejudice to Golapi and Anil. They also poisoned their poultry causing loss to the extent of Rs. 20,000/-. We find another complaint of Anil on June 29, 1998, supporting earlier complaint of June 20, 1998, accusing Sachindra maintaining illicit relationship with Golapi. We fail to appreciate how we could reconcile the two versions of the same person. From the record it appears that the signatures vary as we find through our naked eyes. We, however, admit that we do not have the expertise to come to a definite conclusion on that score. The Authority, however, did not venture such process. From the records it also appears that the higher Authority acted on both the complaints. The result, however, is not known. On January 8, 1999 villagers, numbering 142 or so, made complaint about the incident of June 21, 1998 accusing Sachindra. Golapi made another complaint on January 19, 1999. Golapi was however, consistent on her statement. Before the enquiry, Anil supported the case of the prosecution while Golapi supported the other version. Golapi, although a prosecution witness, supported the other version. According to Golapi, she had a relation with Sachindra. They were cousins and there was no illicit relationship between them. Anil however, disputed such contention. On these facts, the Authority dismissed the petitioner from service vide order dated April 25, 2003. We find from the record that the Enquiry Officer examined the witnesses on March 23, 1999 and February 15, 2000, whereas the report was submitted on August 28, 2000. It was alleged that no copy of the deposition was ever served on Sachindra contemporaneously. From the records we find that copies of the depositions were given to him on November 23, 2000 much after submission of the Enquiry report. 5. He challenged the order of punishment before the Tribunal. The Tribunal vide judgment and order dated January 5, 2010 dismissed the application by finding it meritless. The Tribunal, after recording the submissions, held that the authority followed all the required formalities before imposing punishment. The Tribunal observed that when a senior Police Officer was charged with gross moral turpitude involving himself with a housewife, the punishment of dismissal would be apt. There was no discussion on the evidence, as we find from the judgment and order impugned herein. 6. The Tribunal observed that when a senior Police Officer was charged with gross moral turpitude involving himself with a housewife, the punishment of dismissal would be apt. There was no discussion on the evidence, as we find from the judgment and order impugned herein. 6. Being aggrieved by and dissatisfied with the judgment and order of the Tribunal, Sachindra filed this instant application, which we heard yesterday and today. 7. Mr. Tapabrata Chakraborty, learned Counsel appearing for the petitioners submits before us that the authority did not adhere to the well-known principle of natural justice. The Tribunal failed to appreciate that the principle of natural justice was performed in breach. He contends that the copies of the depositions or the preliminary report of Santimoy was not given to the delinquent during pendency of the enquiry. The delinquent was not allowed to file written statement. He also contends that under Regulation 861(f) the authority was supposed to give hearing to the delinquent before imposing major punishment. Such regulation was performed in breach, as submitted by Mr. Chakraborty. 8. On the factual matrix, Mr. Chakraborty contends that the villagers being the vital witnesses, were not examined. No independent witness was examined to prove the charge. The disciplinary authority while passing the order, did not discuss the evidence, so came out in the enquiry. The appellate authority also dismissed the appeal mechanically. The appellate authority while doing so, relied on the statement of the delinquent extracted in the Police Station on the day of occurrence, which was not considered either during enquiry or by the disciplinary authority. Copy of such statement was never given to the delinquent. 9. To support his contentions on the violation of principle of natural justice, Mr. Chakraborty cites the following decisions: 1) All India Reporter 2000 Supreme Court page 277 (Hardwari Lal vs. State of U.P.) 2) 1995 Volume 1 Supreme court Cases page 404 (Committee of Management, Kisan Degree College vs. Shambhusaranpandey) 3) All India Reporter 1998 Supreme Court page 3038 (State of U.P. vs. Shatughan Lal) 4) 1991 Volume 2 Calcutta High Court Notes page 519 (Usha Ghosh Vs. Rabindra Nath Das). 10. Mr. Chakraborty also submits that when allegations are serious, the Enquiry Officer ought to have been more careful, while dealing with the charges. He should not have made a passing remark. Mr. Rabindra Nath Das). 10. Mr. Chakraborty also submits that when allegations are serious, the Enquiry Officer ought to have been more careful, while dealing with the charges. He should not have made a passing remark. Mr. Chakraborty makes such submission while drawing our attention to the fact that the Enquiry Officer made a passing remark in his report that the delinquent had shown his red eyes to the witnesses. 11. To support his contention, he cites the following Supreme Court decisions: 1) 2009 Volume 1 Supreme 438 (Roop Singh Negi vs. Punjab National Bank & Ors.) 2) 2010 Volume 1 Supreme page 561 (State of U.P. & Ors. vs. Saroj Kumar Sinha) 12. Lastly he cites the latest decision of the Apex Court in the case of Automotive Tyre Manufacturers Association vs. The Designated Authority & Ors. reported in 2011 Volume 1 Supreme 135. Paragraph 59 of the said decision has been relied upon by Mr. Chakraborty, wherein the Apex Court observed, “if one person hears and other decides, then personal hearing becomes an empty formality.” According to him, the disciplinary authority gave personal hearing to the delinquent, however, the concerned Officer, who gave the hearing, did not pass the order of punishment, which was passed by his successor-in-office, who did not give any personal hearing. 13. Mr. Chakraborty prays for setting aside of the judgment and order of the Tribunal as well as the order of the disciplinary authority, so merged in the order of the appellate authority. 14. Opposing the application on behalf of the State, Mr. Jayatosh Majumder, learned Counsel appearing for the respondents contends that the delay in holding the enquiry was caused primarily, because of non-cooperation on the part of the delinquent. He draws our attention to the note-sheet to show that at the instance of the delinquent, the enquiry was postponed. According to Mr. Majumder, there was no violation of the principle of natural justice, as the copies of the documents were served, as and when asked for. 15. Commenting on Regulation 861(f), Mr. Majumder contends that one has to ask for hearing before the disciplinary authority. It was not the case of the delinquent that he asked for hearing, which was denied. Hence, the decisions cited on that score, could be of no assistance to the delinquent. Mr. 15. Commenting on Regulation 861(f), Mr. Majumder contends that one has to ask for hearing before the disciplinary authority. It was not the case of the delinquent that he asked for hearing, which was denied. Hence, the decisions cited on that score, could be of no assistance to the delinquent. Mr. Majumder contends that even if it is assumed that the copies were not given, the delinquent must show that prejudice was caused to him, otherwise such non-furnishing of the copies would not be fatal for the disciplinary authority. To support his contention Mr. Majumder relies on paragraphs 83 and 84 of the decision in the case of Union of India & Ors. vs. Aloke Kumar reported in 2010 Volume 5 Supreme Court Cases page 349. 16. On the phraseology ‘perverse finding’, Mr. Majumder cites the Apex Court decision in the case of General Manager (P), Punjab & Sind Bank & Ors. Vs. Daya Singh reported in 2010 Volume 11 Supreme Court Cases page 233 and refers to paragraph 24 therein. 17. Mr. Majumder lastly contends that the charges are so serious in nature, the court should not take a lenient view. To support his contention, he relies on the Apex Court decision in the case of State of Meghalaya & Ors. vs. Mecken Singh N. Marak reported in 2008 Volume 7 Supreme Court Cases page 580. 18. He also cites two Apex Court decisions in the case of TATA Teleservices Ltd. Vs. Bharat Sanchar Nigam Ltd. & Ors. reported in 2008 Volume 10 Supreme Court Cases page 573 and Deputy Inspector General of Police Vs. K. Ravinder reported in 2008 Volume 2 Supreme Court Cases page 590. 19. We have considered the rival contentions. We have carefully perused the records so produced by Mr. Majumder. We have also considered the Apex Court decisions cited at the Bar. Before we go into the controversy, let us examine the records to narrow down the incident on admitted situation. The analysis reveals as follows: I) In 1997-98 Sachindra was posted as Assistant Sub-Inspector in Hasanabad Police Station, when he became acquainted with the family of Anil and Golapi. II) On May 16, 1998 he was posted at Hasanabad Police Station, when he was alleged to have abused the driver of a hired car in filthy language and was charged with the allegation of not attending the duty on that date. II) On May 16, 1998 he was posted at Hasanabad Police Station, when he was alleged to have abused the driver of a hired car in filthy language and was charged with the allegation of not attending the duty on that date. III) We, however, do not find any positive evidence from independent source to prove the aforesaid two charges. The driver being the victim of such incident was also not examined. IV) On June 20, 1998 Anil lodged a complaint on the illicit relationship. By that time, Sachindra was transferred to other place. On the following day, he was rescued from the house of Jaladhar Hauli. V) Even on perusal of the report of Santimoy, we do not find any definite evidence to the effect that Sachindra was found in a compromising position with Golapi in a locked room. No independent evidence was laid on the incident. VI) The undertaking of Sachindra so extracted, while he was in police custody, also does not suggest that he admitted his illicit relationship with Golapi. VII) 148 villagers lodged the complaint on January 8, 1999. By the time, the enquiry was on after initiation of the departmental proceeding by issuance of the charge-sheet on October 20, 1998. VIII) All the complaints of Anil and Golapi were on record, wherefrom we find that each one was taken note of by the Police. Those were contemporaneously made. However, the contents were contradictory in case of Anil. IX) At the end of the day, we do not find any positive independent evidence to support the charge of illicit relationship Sachindra had with Golapi. 20. On the procedural irregularity we find that the copies of depositions were given much after submission of the enquiry report. The evidence was taken on March 23, 1999 and February 15, 2000. From the records we find that the Enquiry Officer observed that the copies were not furnished, as he did not ask for it. We fail to appreciate. When the depositions were recorded, natural justice demands that copy should be given to the delinquent. He must know, what was said against him by the witnesses. To that extent, natural justice was certainly violated. On the hearing, we find from the records that the disciplinary authority observed in his order that he need not give further hearing on the issue, as his predecessor already heard the delinquent. He must know, what was said against him by the witnesses. To that extent, natural justice was certainly violated. On the hearing, we find from the records that the disciplinary authority observed in his order that he need not give further hearing on the issue, as his predecessor already heard the delinquent. We fail to understand the logic. Hearing is given for two reasons: 1) The delinquent is afforded opportunity to make his version clear to the authority offering explanation in his defence. 2) The authority gets first hand information from the delinquent on the issue and his explanation offering his views on the version of the prosecution witnesses, which supported the prosecution case. 21. If we have to accept the logic, it would mean, one Judge hears the matter and the other delivers the judgment. The Apex Court decision in the case of Automotive Tyre Manufacturers Association (supra) is a complete answer on the issue. 22. Mr. Majumder is right, when he says that unless prejudice is caused, mere denial of opportunity could not be fatal. On the factual matrix, we are satisfied that the prejudice was really caused because of non-furnishing of the depositions during pendency of the enquiry. If the depositions were furnished to the delinquent, he could have submitted his version before the Enquiry Officer holding the enquiry, to come to a right finding. Such opportunity was denied. Mr. Majumder cites the authority in the case of General Manager, Punjab & Sind Bank & Ors. (supra). Paragraph 24 of the said decision has been relied upon by Mr. Majumder, wherein the Apex Court observed, “Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee.” 23. From the order of the disciplinary authority so merged in the order of the appellate authority, we find that there was no detailed discussion of the evidence. The disciplinary authority, while passing the final order, observed as follows: “I perused all the relevant documents of the proceeding file including the charge, statement of allegations, statement of PWs, statement of DWs, documents exhibited and the finding of the E.O., carefully with judicious mind. I also peruse the reply to the Show Cause notice submitted by the charged officer but ……..is not satisfactory.” 24. In our view, this cannot be said to be application of mind by the disciplinary authority. I also peruse the reply to the Show Cause notice submitted by the charged officer but ……..is not satisfactory.” 24. In our view, this cannot be said to be application of mind by the disciplinary authority. The appellate authority also adopted identical mode. Hence, the decision in the case of General Manager, Punjab & Sind Bank & Ors. (supra) would rather support the case of the petitioners. 25. The decision in the case of State of Meghalaya & Ors. (supra) has been cited by Mr. Majumder to support his contention that since the charges were serious in nature, no lenient view should be taken by this court. 26. We do admit that the charge – I is too serious and there is no scope for taking a lenient view. If the charge is proved, the punishment of dismissal from service would be only answer. However, we do not find any concrete proof to the charge. 27. We are quite aware of the gravity of the charge, if we put our seal of approval to the finding, it would have not only the effect of dismissal from service taking away means of livelihood of a human being but also serious repercussion on his domestic and social life. Throughout his life, he would have to carry the stigma of being entangled with a married woman having illicit relationship with her. As observed by the Supreme Court in the case of Roop Singh Negi (supra) “Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof”. In our view, one should not be swayed away with the imputation of allegation without examining the veracity of the same. The Court of Law must be dispassionate while hearing a controversy of the like nature. We are of the view that prosecution miserably failed to prove the charges particularly the charge – I, which could justify the punishment. 28. We are constrained to hold that the authority failed to apply their mind while passing the final order and/or the appellate order. 29. The Tribunal, in our view, should have examined the evidence on record in detail being a fact-finding body before putting its seal of approval on the order of punishment. 30. The application succeeds and is allowed. 28. We are constrained to hold that the authority failed to apply their mind while passing the final order and/or the appellate order. 29. The Tribunal, in our view, should have examined the evidence on record in detail being a fact-finding body before putting its seal of approval on the order of punishment. 30. The application succeeds and is allowed. The order of punishment so merged in the order of the appellate authority is quashed and set aside. We are told that the order of dismissal from service was effected on April 25, 2003 whereas the delinquent was to retire from service with effect from June 30, 2007. During this period, he did not serve the State since he retired from service. We cannot grant liberty to start de-novo enquiry. Maintaining a balance, we feel, interest of justice would subserve, if we deny him back wages to the extent of 50%. The petitioner be deemed to be in service with effect from April 25, 2003 and would be entitled to all notional benefits which he would have otherwise earned during his service tenure. His retiral benefit be calculated including the pensionary benefits if he is otherwise entitled to. 31. The application is disposed of without any as to costs. 32. The operation of this judgment and order would remain stayed for two months from date to enable the State to test this order before the Apex Court. We, however, make it clear that during the period of stay, the State should give him provisional pension without prejudice to their rights and contentions to approach the Apex Court. 33. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.